Citation Nr: 0740114
Decision Date: 12/20/07 Archive Date: 12/26/07
DOCKET NO. 06-11 525 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to an initial rating in excess of 10 percent
for bilateral tinnitus.
3. Entitlement to an initial compensable rating for
residuals of bilateral tympanic membrane perforations.
4. Entitlement to an initial compensable rating for
headaches.
REPRESENTATION
Veteran represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K. Conner, Counsel
INTRODUCTION
The veteran served on active duty from July 2001 to September
2005.
This matter came to the Board of Veterans' Appeals (Board) on
appeal from a November 2005 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida. In that rating decision, the RO, inter
alia, denied service connection for bilateral hearing loss;
granted service connection for bilateral tinnitus and
assigned an initial 10 percent rating; and granted service
connection for residuals of bilateral tympanic membrane
perforations and assigned an initial zero percent rating.
In February 2006, the veteran submitted a notice of
disagreement with the RO's decision on these claims,
including the initial ratings assigned for his tinnitus and
perforated tympanic membrane disabilities. See Fenderson v.
West, 12 Vet. App. 119, 126 (1999). Later that month, the RO
issued a Statement of the Case addressing these issues. In
March 2006, the veteran perfected an appeal by means of his
submission of a timely VA Form 9. In January 2007, the RO
certified the issues of entitlement to service connection for
bilateral hearing loss, and entitlement to increased ratings
for bilateral tinnitus and bilateral tympanic membrane
perforations to the Board for appellate consideration.
In reviewing the record, however, the Board finds that the
issues on appeal also include entitlement to an initial
compensable rating for headaches. Specifically, the Board
notes that in the November 2005 rating decision discussed
above, the RO also granted service connection for headaches
and assigned an initial zero percent rating.
In a January 2006 statement entitled "Notice of
Disagreement," the veteran reported experiencing terrible
headaches. The Board finds that the veteran's January 2006
statement falls squarely within the regulatory framework for
the filing of a timely notice of disagreement. The
correspondence is in writing; it essentially expresses
dissatisfaction with the noncompensable rating assigned for
headaches; and it was timely filed within the requisite one-
year time period of the November 2005 rating decision. See
38 C.F.R. §§ 20.201, 20.302 (2007). Subsequently, in
November 2007, the RO issued a Statement of the Case
addressing the issue of entitlement to an initial compensable
rating for headaches.
In November 2007, the veteran testified at a Board hearing
before the undersigned Veterans Law Judge who was designated
by the Chairman to conduct the hearing pursuant to 38
U.S.C.A. § 7107(c) (West 2002) and who is rendering the
determination in this case. At the November 2007 hearing,
the veteran reiterated his contentions regarding the severity
of his service-connected headaches. By statute, questions as
to the timeliness or adequacy of a substantive appeal are
determined by the Board. 38 U.S.C.A. § 7105(d)(3) (West
2002); 38 C.F.R. § 20.101(d) (2007). In this case, the Board
accepts the veteran's November 2007 hearing transcript at a
timely substantive appeal with the issue of entitlement to an
initial compensable rating for headaches.
In that regard, the Board finds that the veteran's hearing
testimony, as contained in the written hearing transcript,
meets the requirements necessary for a Substantive Appeal.
Cf. Sondel v. Brown, 6 Vet. App. 218, 220 (1994); Tomlin v.
Brown, 5 Vet. App. 355, 357 (1993). Moreover, accepting the
veteran's November 2007 hearing testimony in lieu of a VA
Form 9 is in keeping with the long-standing recognition of
the nonadversarial, uniquely pro-veteran claims process
within VA. Cf. Barrett v. Nicholson, 466 F.3d 1038, 1044
(Fed. Cir. 2006) (noting that "the importance of systemic
fairness and the appearance of fairness carries great
weight" within the nonadversarial veterans benefits system
and that "[t]he [G]overnment's interest in veterans cases is
not that it shall win, but rather that justice shall be
done."). For these reasons, the Board finds that the issues
on appeal are as set forth on the cover page of this remand.
In November 2007, the Board advanced this case on the docket,
pursuant to 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. §
20.900(c) (2007).
As set forth in more detail below, a remand is necessary with
respect to the issue of entitlement to service connection for
bilateral hearing loss. This issue is addressed in the
REMAND portion of the decision below and is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
1. On November 8, 2007, prior to the promulgation of a
decision in the appeal, the veteran requested a withdrawal of
his appeal of the issue of entitlement to an initial rating
in excess of 10 percent for bilateral tinnitus.
2. The veteran is currently receiving the maximum rating
available for bilateral tympanic membrane perforations, and
factors warranting extraschedular consideration are neither
shown nor alleged.
3. The veteran reports that his headaches occur on a daily
basis, occasionally becoming so severe that they require him
to lay down in bed or on the couch.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of a Substantive Appeal by
the veteran have been met with respect to the issue of
entitlement to an initial rating in excess of 10 percent for
bilateral tinnitus. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West
2002); 38 C.F.R. §§ 20.202, 20.204 (2007).
2. The criteria for an initial compensable rating for
residuals of bilateral tympanic membrane perforations have
not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38
C.F.R. §§ 3.321, 4.87, Diagnostic Code 6211 (2007).
3. The criteria for an initial 30 percent rating for
headaches have been met. 38 U.S.C.A. §§ 1155, 5107, (West
2002); 38 C.F.R. § 4.124a, Diagnostic Codes 8045, 8100
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
Duty to Notify
Under the VCAA, VA is required to advise a claimant of the
information and evidence not of record that is necessary to
substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002);
38 CFR § 3.159(b)(1) (2007). As part of that notice, VA must
inform the claimant of the information and evidence he is
expected to provide, as well as the information and evidence
VA will seek to obtain on his behalf. In addition, VA must
advise a claimant to provide any additional evidence in his
possession that pertains to the claim. See 38 U.S.C.A. §
5103 (West 2002); 38 CFR § 3.159(b)(1) (2007).
The United States Court of Appeals for Veterans Claims
(Court) has provided additional guidance with respect to VA's
VCAA notification obligations. In Pelegrini v. Principi, 18
Vet. App. 112 (2004), the Court held that under the notice
provisions of the VCAA, a claimant must be provided notice of
the evidentiary matters specified in statute and regulation
before an initial unfavorable decision by the RO.
In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the
Court held that the notice requirements of section 5103(a)
apply generally to the following five elements of a service
connection claim: (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date.
In this case, in an August 2005 letter issued prior to the
initial decision on the claims, the RO notified the veteran
of the information and evidence needed to substantiate and
complete a claim of service connection, and of what part of
that evidence he was to provide and what part VA would
attempt to obtain for him. Additionally, he was provided
with a VA Form 21-4138 for the purpose of identifying any
additional information in connection with his claims.
38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1)
(2007); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
The Board acknowledges that the VCAA letter discussed above
does not specifically satisfy all of the notice requirements
of section 5103(a), particularly the additional requirements
delineated by the Court in Dingess/Hartman. Nonetheless, the
evidence does not show, nor does the veteran contend, that
any notification deficiencies have resulted in prejudice or
otherwise affected the essential fairness of the
adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed.
Cir. 2007).
In that regard, the Board notes in March 2006, the RO issued
a letter for the express purpose of notifying the veteran of
the additional elements imposed by the Court in
Dingess/Hartman. The RO then reconsidered the veteran's
claims, as evidenced by the October 2006 and November 2007
Supplemental Statements of the Case. See Overton v.
Nicholson, 20 Vet. App. 427, 435 (2006); see also Medrano v.
Nicholson, 21 Vet. App. 165 (2007) (holding that a notice
error may be cured by providing compliant notice, followed by
a readjudication).
For the reasons discussed above, the Board finds that VA has
fulfilled its VCAA notification duties to the veteran to the
extent necessary. Neither the veteran nor his representative
has argued otherwise.
Duty to Assist
Under the VCAA, VA also has a duty to assist claimants in
obtaining evidence needed to substantiate a claim, unless no
reasonable possibility exists that such assistance would aid
in substantiating the claim. 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159(c) (2007).
In this case, the veteran's service medical records are on
file. Despite being given the opportunity to do so, the
veteran has neither submitted nor identified any additional
post-service VA or private clinical records pertaining to his
claims. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. §
3.159(c)(2), (3) (2007).
The veteran has also been afforded VA medical examinations in
connection with his claims. 38 C.F.R. § 3.159(c)(4) (2007).
The Board finds that the reports of these examinations
provide the necessary medical opinions as well as sufficient
reference to the pertinent schedular criteria. See Massey v.
Brown, 7 Vet. App. 204 (1994).
For the reasons set forth above, and given the facts of this
case, the Board finds that VA has fulfilled its VCAA duties
to the veteran. A remand for additional notification or
development would only result in unnecessarily delaying this
matter with no benefit flowing to the veteran. See Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994). Thus, no further
notification or development action is necessary on the issues
now being decided. Again, neither the veteran nor his
representative has argued otherwise.
Background
The veteran's service medical records show that in August
2004, he sustained severe injuries in an IED blast in Iraq,
including a left transtibial amputation, multiple soft tissue
wounds, bilateral tympanic membrane perforations, a left
orbital wall fracture, and bilateral ruptured globes.
In March 2005, the veteran was evaluated in connection with
Medical Evaluation Board proceedings. At an Ear, Nose, and
Throat examination, the veteran complained of hearing loss.
Examination of the right ear showed a clean perforation
involving approximately 50 percent of the right tympanic
membrane. On the left, a normal tympanic membrane was
visualized. Audiometric testing showed a conductive hearing
loss of approximately 30-50 decibels on the right. On the
left, audiometric testing showed normal hearing thresholds.
The diagnosis was right tympanic membrane perforation. The
veteran was offered surgical tympanic membrane grafting to
possibly restore his hearing acuity, but he declined.
In connection with his separation from service, the veteran
submitted an application for VA compensation benefits,
seeking service connection for numerous disabilities
sustained in the August 2004 IED blast.
In September 2005, the veteran underwent a series of VA
medical examinations in connection with his claim. At a
September 2005 VA audio examination, the veteran reported
continued difficulty hearing, on the right side greater than
left, as well as constant bilateral tinnitus. Audiometric
testing revealed that the veteran's right ear pure tone
thresholds were 25, 20, 20, 30, and 35 decibels at 500,
1,000, 2,000, 3,000 and 4,000 hertz, respectively. The four-
frequency right pure tone average was 26.25 decibels. Left
ear pure tone thresholds were 10, 0, 0, 5, and 5 decibels at
the same tested frequencies. The four-frequency left pure
tone average was 2.5 decibels. Speech recognition was 98
percent correct on the right and 100 percent correct on the
left. Tympanometry showed a perforated eardrum on the right.
The left ear was normal.
At a VA Ear, Nose, and Throat examination in September 2005,
the examiner noted the veteran's history of severe injuries
in an IED blast, including multiple soft tissue injuries to
the face, a left orbital blowout fracture, and bilateral
tympanic membrane perforations. The veteran reported that
his current symptoms included recurrent ear drainage, pain,
hearing loss, and daily vertigo. The veteran also reported a
recurrent headache in the frontal area and bilateral cheek
region since the blast. On examination, the auricles and ear
canals were normal. There was a large, right, inferior, dry
tympanic membrane perforation with no evidence of infection.
On the left side, the perforation had healed. There was no
evidence of infection. The diagnoses included right tympanic
membrane perforation, healed left tympanic membrane
perforation, bilateral hearing loss with tinnitus, and
vertigo. The examiner indicated that the veteran's
disabilities were the result of injuries sustained in the
August 2004 IED blast.
In a November 2005 rating decision, the RO granted service
connection for multiple disabilities, including bilateral
tinnitus, rated as 10 percent disabling under Diagnostic Code
6260; bilateral tympanic membrane perforations, rated as zero
percent disabling under Diagnostic Code 6211; and headaches,
rated as zero percent disabling by analogy under Diagnostic
Code 8100. The RO denied service connection for bilateral
hearing loss, finding that the veteran did not have a hearing
loss disability for VA compensation purposes.
The veteran appealed the RO's determinations. In January and
February 2006 statements, the veteran described constant
ringing in his ears, as well as pain and terrible headaches.
He also indicated that he had a very difficult time hearing
things.
In March 2006, the veteran underwent VA Ear, Nose, and Throat
examination at which he reported that since his injury in
August 2004, he had experienced subjective dizziness while
laying down, as well as periorbital headaches twice monthly,
which the examiner indicated may be associated with the
veteran's facial fractures. On examination, the left
tympanic membrane was intact. There was a marginal posterior
tympanic membrane perforation on the right ear without middle
ear fluid or external canal discharge. Tuning fork tests
were consistent with a conductive hearing loss on the right.
The examiner indicated that the veteran had subjective
dizziness but did not have physical signs of a peripheral or
central vestibular problem. The final diagnoses included a
marginal tympanic membrane perforation of the right ear with
conductive hearing loss in the right ear and facial
fractures. The examiner scheduled a CT scan for further
evaluation, but the veteran failed to appear.
At his November 2007 Board hearing, the veteran testified
that he experienced draining from his ears, as decreased
hearing acuity and constant ringing in his ears. He also
testified that he experienced daily headaches, lasting for
approximately one hour. The veteran indicated that he tried
to control his headaches with pain medication such as
Tylenol, but that his headaches occasionally became so severe
that he had to lay down in bed or on the couch to relieve his
pain.
Applicable Law
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate rating codes identify the various disabilities. 38
C.F.R. Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (2007). Any
reasonable doubt regarding the degree of disability is
resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007).
When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
Conjectural analogies will be avoided, as will the use of
analogous ratings for conditions of doubtful diagnosis, or
for those not fully supported by clinical and laboratory
findings, nor will ratings assigned to organic diseases and
injuries be assigned by analogy to conditions of functional
origin. 38 C.F.R. § 4.20 (2007).
The evaluation of the same disability under various diagnoses
is to be avoided. Disability from injuries to the muscles,
nerves, and joints of an extremity may overlap to a great
extent, so that special rules are included in the appropriate
bodily system for their evaluation. Both the use of
manifestations not resulting from service-connected disease
or injury in establishing the service-connected evaluation,
and the evaluation of the same manifestation under different
diagnoses are to be avoided. 38 C.F.R. § 4.14 (2007). The
Court has emphasized that a claimant may not be compensated
twice for the same symptomatology as such a result would
overcompensate the claimant for the actual impairment of his
earning capacity. Brady v. Brown, 4 Vet. App. 203 (1993).
Notwithstanding the provisions of 38 C.F.R. § 4.14, VA is
required to provide separate evaluations for separate
manifestations of the same disability which are not
duplicative or overlapping. See Esteban v. Brown, 6 Vet.
App. 259, 261 (1994), 38 C.F.R. § 4.25 (2007).
The Court held in Francisco v. Brown, 7 Vet. App. 55, 58
(1994), that compensation for service-connected injury is
limited to those claims which show present disability, and
where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary
importance.
The Court has since determined that the above rule is
inapplicable to the assignment of an initial rating for a
disability following an initial award of service connection
for that disability. At the time of an initial award,
separate ratings can be assigned for separate periods of time
based on the facts found, a practice known as "staged"
ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999).
The Court has also recently held that staged ratings are
appropriate for an increased rating claim when the factual
findings show distinct time periods where the service-
connected disability exhibits symptoms that would warrant
different ratings. See Hart v. Mansfield, No. 05-2424 (U.S.
Vet. App. Nov. 19, 2007).
The standard of proof to be applied in decisions on claims
for veterans' benefits is set forth in 38 U.S.C.A. § 5107(b).
Under that provision, VA shall consider all information and
lay and medical evidence of record in a case before the
Secretary with respect to benefits under laws administered by
the Secretary. When there is an approximate balance of
positive and negative evidence regarding any issue material
to the determination of a matter, the Secretary shall give
the benefit of the doubt to the claimant. 38 U.S.C. §
5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet.
App. 49, 54 (1990) (holding that the preponderance of the
evidence must be against the claim for the benefit to be
denied).
Analysis
Bilateral tinnitus
As set forth above, in the November 2005 rating decision on
appeal, the RO granted service connection for bilateral
tinnitus and assigned an initial 10 percent rating, pursuant
to 38 C.F.R. § 4.87, Diagnostic Code 6260, the rating
criteria for evaluating tinnitus.
The veteran's service-connected bilateral tinnitus has been
assigned the maximum schedular rating available. See Smith
v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (affirming VA's
long-standing interpretation of Diagnostic Code 6260 as
authorizing only a single 10 percent rating for tinnitus,
whether unilateral or bilateral).
Recognizing that he was in receipt of the maximum schedular
rating available for tinnitus, at his November 2007 hearing,
the veteran indicated that he wished to withdraw his appeal
of this claim.
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. A Substantive Appeal may be
withdrawn in writing at any time before the Board promulgates
a decision. 38 C.F.R. § 20.202 (2007). Withdrawal may be
made by the veteran or by his or her authorized
representative, including at a hearing on appeal. 38 C.F.R.
§ 20.204 (2007). In this case, the veteran, with the
concurrence of his authorized representative, has withdrawn
his appeal with respect to the issue of entitlement to an
initial rating in excess of 10 percent for bilateral
tinnitus. Accordingly, the Board does not have jurisdiction
to review the appeal and it is dismissed.
Residuals of bilateral tympanic membrane perforations
The veteran's residuals of bilateral perforated tympanic
membranes is currently assigned a noncompensable rating
pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6211.
This is the maximum rating available in the Rating Schedule
for a perforation of the tympanic membrane. Consequently,
there is no legal basis upon which to award a higher
schedular for the veteran's residuals of bilateral perforated
tympanic membranes.
In light of the veteran's complaints of drainage and pain,
the Board has considered application of Diagnostic Codes 6200
and 6210. Diagnostic Code 6200 addresses otitis media
disorders. Under that provision, a 10 percent rating is
warranted where the medical evidence shows suppuration or
aural polyps. Diagnostic Code 6210 addresses chronic otitis
externa. Under that provision, a 10 percent rating is
assigned for swelling, dry and scaly or serous discharge, and
itching requiring frequent and prolonged treatment.
In this case, while the veteran reports a history of ear
drainage, there is no indication in the medical evidence of
record of a polyp or mass developing in the aural canal.
Similarly, the veteran has received no treatment for his ear
complaints. Under these circumstances, the Board finds that
Diagnostic Codes 6200 and 6210 do not result in a compensable
rating.
The Board has also considered whether an extraschedular
rating under 38 C.F.R. § 3.321(b)(1) is warranted. In the
instant case, however, there has been no showing that the
veteran's residuals of perforated tympanic membranes have
independently caused marked interference with employment,
necessitated frequent periods of hospitalization, or
otherwise rendered impracticable the application of the
regular schedular standards. Indeed, neither the veteran nor
his representative has contended otherwise. Under these
circumstances, the Board determines that the criteria for
referral for an extraschedular rating pursuant to 38 C.F.R. §
3.321(b)(1) are not met. See Shipwash v. Brown, 8 Vet. App.
at 227.
Headaches
The severity of a neurologic disorder is ascertained, for VA
rating purposes, by application of the criteria set forth in
38 C.F.R. § 4.124a. There are no specific diagnostic
criteria for rating a post traumatic headache disorder. When
a veteran is diagnosed with an unlisted disease, it must be
rated under an analogous diagnostic code. See 38 C.F.R. §§
4.20 and 4.27 (2007).
In that regard, Diagnostic Code 8045, pertaining to brain
disease due to trauma, provides for the following
evaluations:
Purely neurologic disabilities, such as hemiplegia,
epileptiform seizures, facial nerve paralysis, etc.,
following trauma to the brain, will be rated under the
diagnostic codes specifically dealing with such disabilities,
with citation of a hyphenated diagnostic code (e.g., 8045-
8207). Purely subjective complaints such as headache,
dizziness, insomnia, etc., recognized as symptomatic of brain
trauma, will be rated as 10 percent and no more under
Diagnostic Code 9304. This 10 percent rating will not be
combined with any other rating for a disability due to brain
trauma. Ratings in excess of 10 percent for brain disease
due to trauma under Diagnostic Code 9304 are not assignable
in the absence of a diagnosis of multi-infarct dementia
associated with brain trauma.
In this case, the veteran has reported experiencing
subjective symptoms such as headaches and dizziness, which
would warrant a 10 percent rating under Diagnostic Code 8045.
The veteran, however, is entitled to be rated under the
Diagnostic Code which allows the highest possible evaluation
for the clinical findings shown on objective examination.
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Thus, the
Board has considered whether application of an alternative
code would be more advantageous to the veteran.
In that regard, the veteran's symptoms are presently
evaluated by analogy to migraine headache disorder under
Diagnostic Code 8100. Under Diagnostic Code 8100, a 30
percent rating is warranted for migraines with characteristic
prostrating attacks occurring on an average once a month over
the last several months. The maximum 50 percent rating under
Diagnostic Code 8100 is warranted for very frequent,
completely prostrating and prolonged attacks productive of
severe economic inadaptability.
In this case, the veteran has reported in clinical settings
that he has frequent headaches. At his November 2007 Board
hearing, the veteran testified that his headaches occur daily
and are occasionally so severe that he must lie down. The
Board finds the veteran's hearing testimony to be credible
and assigns it significant probative value.
In light of this record, the Board concludes that the
severity and frequency of the veteran's headaches more
closely approximates the criteria for a 30 percent rating
under Diagnostic Code 8100. The preponderance of the
evidence is against finding that the veteran's headaches are
completely prostrating or productive of severe economic
adaptability so as to warrant a 50 percent rating under this
provision. The evidence does not show, nor does the veteran
contend, that his headache disability is productive of severe
economic inadaptability or that his headaches are prolonged
and completely prostrating. Rather, he indicates that his
prostrating headache attacks last thirty minutes.
The Board further notes that the record contains no
indication, nor has the veteran argued, that an
extraschedular rating for tinnitus is warranted. 38 C.F.R. §
3.321 (2006). Thus, no action with respect to referral for
consideration of an extra-schedular rating is warranted. See
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
After carefully weighing all relevant factors set forth
above, the Board finds that the evidence warrants the
assignment of an initial 30 percent rating for headaches. In
reaching this decision, the Board recognizes the veteran's
distinguished service and sacrifice for his country. The
Board has afforded him the benefit of the doubt in reaching
this decision. 38 U.S.C.A. § 5107(b) (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
The appeal of the claim of entitlement to an initial rating
in excess of 10 percent for bilateral tinnitus is dismissed.
Entitlement to a compensable initial rating for residuals of
a tympanic membranes is denied.
Entitlement to an initial 30 percent rating for headaches is
granted, subject to the law and regulations governing the
payment of monetary benefits.
REMAND
The veteran also seeks service connection for bilateral
hearing loss.
Service connection for impaired hearing is subject to the
requirements of 38 C.F.R. § 3.385 (2007), which provides that
impaired hearing will be considered to be a disability for VA
compensation purposes only if at least one of the thresholds
for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz
is 40 decibels or greater; the thresholds for at least three
of the frequencies are greater than 25 decibels; or speech
recognition scores using the Maryland CNC Test are less than
94 percent. See also Hensley v. Brown, 5 Vet. App. 155
(1993).
In this case, in connection with his claim of service
connection for bilateral hearing loss, the veteran underwent
VA audiometric examination in September 2005. As delineated
above, such testing revealed that the veteran's right ear
pure tone thresholds were 25, 20, 20, 30, and 35 decibels at
500, 1,000, 2,000, 3,000 and 4,000 hertz, respectively. Left
ear pure tone thresholds were 10, 0, 0, 5, and 5 decibels at
the same tested frequencies.
These examination results indicates that the veteran does not
have hearing loss to the extent necessary to constitute a
disability for service connection purposes under 38 C.F.R.
3.385.
At his November 2007 Board hearing, however, the veteran
provided credible testimony regarding the severity of his
hearing loss. His representative argued that in light of the
veteran's contentions and in view of the severity of his in-
service injuries, another examination should be scheduled.
See e.g. Hearing Transcript at page 11 ("[W]e believe a
second examination should've been administered to determine
in the hearing loss actually exists. It's quite hard for us
to believe that some kind of significant hearing loss did not
result from taking the force of a rather large explosion to
the body...We would ask at the very least, that another exam be
conducted.").
In view of the veteran's credible statements regarding the
severity of his hearing loss, the Board finds that another VA
medical examination is necessary to ensure that the veteran
receives every possible consideration. See 38 C.F.R. §
3.159(c)(4).
Accordingly, the case is REMANDED for the following actions:
1. The veteran should be afforded VA
audiology examination to determine the
extent of any current hearing loss. The
claims folder must be made available to
the examiner for review in conjunction
with the examination of the veteran. All
audiological findings, including speech
recognition scores using the Maryland CNC
Test, should be reported. If current
hearing loss disability is shown, then
the examiner should offer an opinion as
to whether it is at least as likely as
not that such hearing loss disability is
causally related to the veteran's active
service.
2. After the above development has been
completed, the RO should review all the
evidence of record in readjudicating the
veteran's claim. If the benefit sought
on appeal remains denied, the veteran and
his representative should be provided
with a supplemental statement of the case
and an opportunity to respond.
The case should then be returned to the Board for appropriate
appellate consideration, if in order.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
____________________________________________
Michelle L. Kane
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs